A Hard Year For Federalism— Part 2 of the interview with P.D.T. Achary

In the second part of this The Leaflet exclusive interview, one of India's foremost constitutional and parliamentary procedure experts, P.D.T. Achary, expresses his thoughts on the Maharashtra political crisis and judgment.

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Read Part 1 here.

Aakritee Raj: Now, let us turn our heads to the events in Maharashtra. The role of the governor, particularly his ability to act as a neutral arbiter, the controversial anti-defection law, the rise of mass defection and critical questions about political stability. What are some of your key takeaways from the episode that happened in Maharashtra?

P.D.T. Achary: The events that took place in Maharashtra are unfortunate, but this is the current political scenario of our country. The governor does not have any executive power. The executive power is vested with the government only. The governor can only set the date of the election and elect the speaker on the advice of the councilor.

The governor lacks the authority to independently choose the speaker and can convene the session solely upon the government's request.

He is advised by the government on important decisions. Therefore, there is essentially nothing that the governor can undertake independently. The governor has to keep away from all political activities.

Such activities should be left to the politicians to deal with. If there is an issue,  the political parties should find a solution. The governor should strictly confine himself to his constitutional responsibility only.

However, that represents an ideal scenario. In our country, and especially at this moment, the ideal scenario does not play out.

Coming to the anti-defection issue in Maharashtra, the Supreme Court also contributed to the confusion. It is still considered as defection, even if one person or fifty people defect from their sworn political affiliation.

Members disassociated from that party and refrained from merging with any other party. Consequently, they were permitted to establish the government, yet this failed to resolve the issue of defection.

Also read: Maharashtra political crisis judgment: A detailed analysis

The faction led by Uddhav Thackeray within the party filed a petition before the deputy speaker. However, the deputy speaker proved incapable of resolving the issue and was subsequently replaced. When such cases are brought before the speaker, they serve as the adjudicating authority for matters governed by anti-defection laws.

When this petition went before the speaker, the other faction immediately filed a counter-petition and moved the petition before the Election Commission of India (ECI) for recognition as the true 'party' and claim over the party symbol.

Subsequently, the Supreme Court asked the ECI to go ahead and see what the speaker decides because anti-defection law takes precedence.

Determining the status of a party or a faction within a party, including the allocation of symbols, is governed by an Order issued by the ECI, known as the Symbols Order.

However, the precedence of this issue should have been acknowledged since it involves constitutional law, making it inherently more important than other considerations.

On one hand, you have a constitutional issue, and on the other hand, you have an issue relating to an Order. The constitutional law should have precedence.

Therefore, in my view, the speaker should have decided this matter at first as the petition came to him first and then only went to the ECI.

Ultimately, the crucial matter is determining the party affiliation. Identifying the party to which a person belongs is essential if a speaker wants or intends to disqualify an individual.

Even in cases where individuals have separated from their initial party, such as when Shiv Sena shifted its allegiance and established a new government, the question of their association with the original party needs clarification.

When it comes to the anti-defection law, it is clear that your connection to a party is decided by the party that chose you as their candidate in the election. So your party affiliation is determined by the party that supported you during the election.

Also read: Who is the real Nationalist Congress Party? Déjà vu of Maharashtra political crisis

In the election, it was essentially Uddhav Thackeray's party. They were the ones who nominated him as a candidate, so logically, he belongs to that party. This is a crucial factor that should guide the speaker in making this decision.

It is unclear why the speaker did not consider this or what might have influenced that decision. Nevertheless, it should have been a straightforward matter for the speaker to resolve constitutionally, although, politically, it might have posed challenges.

This provides clear guidance to the speaker on the matter. If the speaker determines that all these individuals belong to Shiv Sena under the leadership of Uddhav Thackeray, the subsequent step becomes evident— all of them become liable for disqualification as defectors.

It is as straightforward as that, and this may be the reason why this issue was not initially allowed to be decided and was deferred to the ECI. However, the precedence of this issue should have been acknowledged since it involves constitutional law, making it more important than other factors.

A.R.: It is interesting that you mention this because former Prime Minister, Late Atal Bihari Vajpayee was singularly responsible for curtailing the concept of Aaya Ram, Gaya Ram culture of India.

As you know, this term was coined when Gaya Lal, a member of legislative assembly (MLA) from Hodal, Haryana changed his party thrice in 24 hours back in 1967. This practice was limited by the 91st constitutional amendment, which was introduced in 2003.

Originally, one-third of members could defect, but it was changed to two-thirds by the amendment. However, the same party that introduced the amendment has found ways to get around this law. It is concerning to think about the future of the anti-defection law if it is not being followed, especially since it is a constitutional rule.

P.D.T.A.: The anti-defection law, in my opinion, is a good law. Only if it is allowed to be enforced properly. Now, there is a little correction which I want to suggest. It is actually the split provision that has been omitted from the law. One-third of the members, if they move out and say that we are a separate faction, there is a split in the party. A separate faction is being created, and they receive legal protection, preventing their disqualification.

Also read: Defects writ large in the anti-defection law

However, this provision was abused by political parties and party breakers. They exploited it, allowing them to easily defect, typically to the ruling party. To put an end to this, an amendment was introduced during Vajpayee's time to eliminate this split provision.

After the amendment, only one exception remains— merger. The one-third provision has not been converted; it has been removed entirely.

There are two exceptions to this provision mentioned under the 10th Schedule of the Constitution. It is mentioned in Paras 3 and 4 of the Schedule. Para 3 has been omitted and only Para 4 remains. Para 4 talks about the "disqualification on the ground of defection not to apply in case of merger".

In order to take advantage of this particular paragraph, the party, along with its members, has to merge with another party. This decision is not made by individual members; rather, it is a political party decision.

However, the original party is the one that determines whether to merge with another party— it is a political choice at the party level, not a decision made by the MLAs themselves. The MLAs can only agree or disagree with the merger. It is not a case of MLAs merging; rather, they agree with the merger decision made by the original party. Those who disagree can form a separate group.

Also read: NCP split: A chance of course correction for ECI?

This was misinterpreted by the Bombay High Court by saying that if two-thirds of the members merge with another party, then the requirement of Paragraph 2 is fulfilled. I had written an article against this decision by the high court.

The decision was flawed because two-thirds of the members will only agree to a merger that has already occurred. The chronological order is important— first, the merger must take place. Subsequently, as the next step, members will express their agreement. Then, they inform the speaker that they have agreed to this merger, using the precise terms stipulated in the law.

It is essential to note that members of Parliament (MPs) or MLAs do not possess the authority to merge. Such decisions lie with the political parties only. That marks the fundamental distinction.

A.R.: Thank you for elucidating the matter and providing a clear explanation.

Read Part 1 here.

Transcribed by Shrikha Gowri.